论中国法官造法的实践与完善

发布时间：2018-03-25 04:08

本文选题：法官造法　切入点：司法解释　出处：《中国政法大学》2011年硕士论文

【摘要】：本文以法官造法为研究对象。简单地说,法官造法就是法官在司法过程中为解决案件纠纷而创制具体法律规则的活动。文章首先分析了法官造法在中国语境下的概念,接着从比较法角度介绍了法官造法在英美法系、大陆法系以及国际法上的发展状况,最后文章再回到中国,以理论联系实际的方法,从必要性到现实状况,提出一些完善措施,以期为法官造法在中国的理论和实践的发展提供一些有益的探索。全文包括引言、正文和结论三部分。正文分为五章。第一章主要对法官造法的概念进行基本界定,指出法律既是被创造的,也是被发现的,并进一步指出法官造法在中国及在本文是采纳广义的法官造法概念。第二章介绍英美法系、大陆法系和国际法领域的法官造法发展状况。英美法系国家的法官造法是遵循先例原则指导下的最重要的法律渊源,大陆法系国家的法官造法逐步成为成文法之外重要法律渊源,国际法上的法官造法也日益成为解决国际争端等领域的重要依据。第三章分析中国法官造法的必要性和可行性。由于法律漏洞的存在,法官不得拒绝裁判,转型时期社会矛盾多以及宪法司法化的需要,法官造法存在极大的必要性。同时,从法律传统、政治体制、法官素质等方面来看,我国都具备实施法官造法的充分可行性。第四章具体论述我国现存的法官造法实践,即司法解释和“判例”。司法解释已成为我国法律体系中必不可少的一项重要法律渊源,“判例”也开始逐步发展起来,二者都对法律漏洞的填补等方面发挥了重要的作用。当然,无论是司法解释,还是“判例”,都存在一定的不足,有待于进一步的发展和完善。第五章从范围、主体、“判例”、监督等方面对完善我国法官造法提出具体建议。
[Abstract]:In this paper, the author takes the law of judge making as the object of study. In brief, it is the activity of the judge to create specific legal rules in order to solve the dispute in the judicial process. Firstly, the article analyzes the concept of the law of judge making in the Chinese context. Then, from the angle of comparative law, the author introduces the development of judge law in Anglo-American law system, civil law system and international law. Finally, the article comes back to China and puts forward some perfect measures from necessity to reality by combining theory with practice. In order to provide some beneficial exploration for the development of the theory and practice of the judge-making law in China. The full text includes three parts: introduction, text and conclusion. The text is divided into five chapters. The first chapter mainly defines the concept of judge making law, pointing out that the law is not only created but also discovered, and further points out that the judge makes law in China and in this paper adopts the concept of judge making law in a broad sense. The second chapter introduces the development of the law of judges in the fields of common law, civil law and international law. The law of judge in common law system is the most important source of law guided by the principle of precedent. The law of judges in civil law countries has gradually become an important source of law outside of statutory law, and the law of judges in international law has increasingly become an important basis for the settlement of international disputes and other fields. The third chapter analyzes the necessity and feasibility of Chinese judges' lawmaking. Due to the existence of legal loopholes, judges can not refuse to judge. During the transitional period, there are many social contradictions and the need of constitutional judicature. At the same time, there is a great necessity for judges to make law. From the aspects of legal tradition, political system and judge's quality, our country has the full feasibility of implementing the judge's making law. The fourth chapter concretely discusses the existing practice of making law by judges in our country, that is, judicial interpretation and "case law". Judicial interpretation has become an indispensable important legal source in our legal system, and "precedent" has also begun to develop gradually. Both of them have played an important role in filling the legal loopholes. Of course, both judicial interpretation and "precedent" have some shortcomings, which need to be further developed and improved. The fifth chapter puts forward some concrete suggestions on the perfection of our country's judge law from the aspects of scope, subject, case law, supervision and so on.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.2

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